Citation Nr: 1314112 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-37 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a left knee disorder due to shrapnel wound. 2. Entitlement to service connection for a right knee disorder, to include as secondary to left knee disorder. 3. Entitlement to an initial compensable evaluation for bilateral sensorineural hearing loss prior to September 20, 2011, and an evaluation in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from August 1968 to August 1970. These matters come to the Board of Veterans' Appeals (Board) from an April 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for bilateral sensorineural hearing loss assigning a 0 percent rating, effective October 27, 2006, and denied service connection for residuals of a right shoulder injury, left knee injury, and right knee injury. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in May 2011. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A transcript of the proceeding has been associated with the claims file. Based on the Veteran's May 2011 testimony, the Board re-characterized the Veteran's service connection claims to left knee disability was due to an in-service shrapnel injury and that the right knee disability is secondary to the left knee disability. In August 2011, the Board awarded service connection for residuals of a right shoulder injury, and remanded the issues of entitlement to a compensable evaluation for bilateral hearing loss and service connection for left and right knee disorders to the RO (via the appeals Management Center (AMC)) for additional development. By the way of an October 2012 rating decision, the RO increased the assigned evaluation for bilateral sensorineural hearing loss disability to 20 percent disabling, effective from September 20, 2011, the date of a VA audiology examination. The increased rating claim remains in controversy as the rating remains less than the maximum available schedular benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veterans Law Judge who presided over the May 2011 hearing retired from the Board prior to matters returning the Board. Consequently, the RO contacted the Veteran to offer him the opportunity for a new hearing, before the Veteran's Law Judge who would ultimately decide this case. The Veteran declined to testify at another hearing. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to increased rating for bilateral sensorineural hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidentiary record shows competent and credible evidence of an in-service shrapnel wound to the left knee that is consistent with the Veteran's military service as reported on his personnel records. 2. The competent evidence of record demonstrates that the Veteran has a scar on his left knee as a residual of the in-service shrapnel wound. 3. The preponderance of the competent evidence of record is against a finding that the Veteran has a current left knee disorder other than a scar that was incurred in service or the first year thereafter, or is otherwise related to his period of service, to include as due to in-service shrapnel wound. 4. The preponderance of the competent evidence of record is against a finding that the Veteran's current right knee disorder is otherwise related to his period of service, to include as proximately caused by in-service shrapnel wound to the left knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a residual scar on the left knee are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for entitlement to service connection for a left knee disorder other than a scar are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for entitlement to service connection for a right knee disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Stegall Concerns In August 2011, the Board remanded the claims on appeal to the RO (via the AMC) in order to afford the Veteran with a VA examination in order to obtain a medical opinion on the etiology of the Veteran's claimed left and right knee disorders. The Veteran underwent a VA examination in September 2011. In the examination report, the examiner noted a review of the claims folders, recorded the Veteran's reported history and subjective complaints as well as the clinical findings from evaluation, and provided medical nexus conclusions that were supported by rational statements. Also pursuant to the Board's September 2011 remand directives, the AMC requested the Veteran's assistance in obtaining the outstanding private medical records identified during the May 2011 hearing, but the Veteran failed to respond. Since the record reflects that there has been compliance with the Board's August 2011 remand directives, the Board may precede with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 2. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, a December 2006 letter provided the Veteran with proper notice, including of what was necessary to establish the underlying claims of service connection on both a direct and secondary basis, and of his and VA's responsibilities in claims development as well as notice requirements under Dingess. VA has thereby met its obligations to notify the Veteran of the medical and other evidence needed to substantiate his claim and of what evidence he is responsible for obtaining. Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and identified VA and private treatment records have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his cervical spine condition currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. The Board does note that the AMC requested the Veteran's assistance in obtaining private medical records from South Bay Medical Center, in an August 2011 notice letter, but the Veteran failed to respond. The Veteran is advised that the duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has also provided the Veteran with a September 2011 VA examination in conjunction with his claims. The examination report demonstrates that the VA examiner reviewed the evidence of record and rendered appropriate opinion based on the questions presented by the Board. The VA examiner's opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. Therefore, the Board finds that the evidence of record is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he testified before a Veterans Law Judge, who has since retired from the Board. The Veteran has declined the opportunity to testify before the undersigned Board member. 3. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for left and right knee disorders. He asserts that his current left knee disorder is related to in-service shrapnel wound to the left knee. He further asserts that his right knee disorder is secondary to his left knee disorder because he has overcompensated for his left knee by using his right knee and that he now has problems in both of his knees. The record shows that the Veteran served in the U.S. Army from August 1968 to August 1970, which included service in the Republic of Vietnam from February 1, 1969, to January 31, 1970. Personnel records show that he earned, among others, two Purple Hearts for injuries received on June 10, 1969, and June 17, 1969, in Vietnam, as well as the Combat Infantryman Badge (CIB), the Bronze Star Medal, and the Vietnam Service Medal with two Bronze Stars. The Veteran testified that he received a shrapnel injury to his left knee during his military service in the Republic of Vietnam. The Veteran further testified that he had a scar over the left kneecap and that his knee would occasionally swell up. He said the last time it swelled was in 2004 and that he had received private treatment for the knee symptoms in 2006. He also stated that he had pain and swelling in the knee since he left Vietnam, and had limitation of motion. Service treatment records (STRs) are negative for any findings of shrapnel wounds. Significantly, the October 1970 discharge examination report shows normal clinical evaluation of the lower extremities. The Veteran testified that that he began to experienced increased pain in his left knee and then in his right knee, and he sought private treatment for his left knee in 2006. However, the Veteran failed to respond to VA's request for his assistance in obtain those records. The first medical evidence of record of any knee problems comes from the report of a September 2011 VA joint examination in conjunction with his claims for service connection. The examination report shows diagnoses of patella femoral syndrome in both knees, and gout arthritis in the left knee. The examiner recorded the Veteran's reported history of an in-service shrapnel wound to his left knee and observed that the Veteran had a healed cutaneous soft tissue type of injury on the medial left knee. The Veteran reported that he continued to experience mild left knee pain since this incident, and he began to develop right knee pain approximately one year after his separation from service. He reported that he began to experience increase pain and frequency in both of his knees and he developed swelling in his left knee. He required an aspiration to his left knee, which he was informed was gout related. He also admitted to a history of gouty arthritis in his big toes. Clinical evaluation revealed guarding in both knees and abnormal tracking the left knee. X-ray film revealed minimal degenerative changes in both patellae. The September 2011 VA examiner opined that it was less likely than not that the Veteran's patella femoral syndrome in either knee was caused by or a result of his period of service. The VA examiner further opined that the Veteran's right knee condition was not caused or aggravated by his left knee patella femoral syndrome. Initially, the VA examiner noted that the lack of inservice medical evidence of left knee shrapnel wound injury as well as on the lack of radiographic findings consistent with a shrapnel injury in the left knee. However, the examiner observed that there was evidence of healed scar on the Veteran's left knee that was consistent with the Veteran's reports of in-service shrapnel injury. The examiner noted that it was medically plausible that a shrapnel type of injury could have caused enough blunt trauma to the Veteran's left patella to ultimately lead to abnormal tracking of the patella and would eventually cause patella femoral syndrome. However, the examiner found that such development would not explain the etiology of the Veteran's right knee condition as the x-ray evidence of minimal changes in both knees suggested symmetric type of process such as age-related degenerative joint disease. The examiner noted that in order to support the Veteran's assertion of aggravation, the x-ray findings would not to be asymmetric with more pathology on the left than the right, but that was not case here. The September 2011 VA examiner also concluded that the Veteran's gout arthritis was the primary etiology of his left knee symptomatology, and his gout arthritis was not related to his period of service. The examiner noted that there was no evidence of gout arthritis noted in service or at the time of the Veteran's separation from service. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. In this case, the record shows that the Veteran has current diagnoses of a residual scar on the left knee, gout arthritis in his left knee, and patella femoral syndrome in both his knees. There is evidence of current disabilities in both knees. Initially, the Board will address entitlement to service connection for a residual scar on the left knee. While the Board acknowledges that the Veteran's primary contention for serice-connection for his left knee concerns more musculoskeletal involvement, the Board cannot ignore the competent lay and medical evidence of record demonstrates that the Veteran has a scar on his left knee as a residual of the in-service shrapnel wound. Here, the record shows competent and credible evidence of in-service shrapnel wound to the left knee. The Veteran's lay statements with respect to shrapnel striking his left knee are considered competent evidence, as a lay person is competent to report that which he can observe or experience. The Veteran also had combat service in Vietnam, as shown by his receipt of two Purple Hearts and the CIB; and his report of the shrapnel injury to the left knee is consistent with the type of combat service he had in Vietnam. Thus, his statements with respect to his in-service injury are considered credible, as well. Therefore, even though the STRs are negative for any treatment for the shrapnel wound to the left knee, which is consistent with the Veteran's statements during the hearing that he only had his wound dressed onsite, the Veteran's sworn testimony is considered competent and credible evidence of an in-service shrapnel wound to the left knee. There is no clear and convincing evidence to the contrary to rebut the Veteran's credible statements. See 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.304(d). Moreover, the September 2011 VA examiner observed that there was evidence of healed scar on the Veteran's left knee which is consistent with his report of shrapnel injury at that location. The competent lay and medical evidence demonstrates that the Veteran has a current disability, residual scar on his left knee that is a residual of the in-service shrapnel wound injury to that knee. See 38 C.F.R. § 3.303. The Board finds that entitlement to service connection for a residual scar on the left knee is warranted. See Id. The Board now turns to the Veteran's primary contention that the current musculoskeletal involvement in his knees, identified as gout arthritis in his left knee and patella femoral syndrome in both of his knees, are related to an in-service left shrapnel knee injury. With respect to the diagnosis of gout arthritis, the service treatment records are silent with regard to complaints, treatment, or diagnosis of gout arthritis. In fact, the Veteran has not asserted that his gout arthritis is related to his period of service or was incurred with in the first year thereafter, and he has not asserted that his gout arthritis is related to his period of service. Rather, the medical evidence does not show manifestations of gout arthritis until decades after the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. Moreover, the September 2011 VA examiner opined against a nexus between the Veteran's gout arthritis and his period of service. See 38 C.F.R. § 3.303. The Board finds that the preponderance of the competent evidence is against a finding that the gouty arthritis in the Veteran's left knee is related to his period of service. With respect to the Veteran's contention that his bilateral patellar femoral syndrome is related to an in-service left shrapnel knee injury, the Board also finds that the preponderance of the evidence is against a finding that the Veteran's left or right knee disorders are related to his period of service. While the record supports the Veteran's lay statement and testimony of an in-service left knee shrapnel injury, the Veteran has not asserted that he was diagnosed with chronic disorder involving his left knee or right knee during his period of service, despite his reported injury. Moreover, the Veteran has not asserted, and the medical evidence of record does not show, that he sought any treatment immediately following his separation from service for his bilateral knee disorder until 36 years later. Indeed, the Veteran reported that he did not seek any post-service treatment for his left and right knees until 2006. Presumptive service connection is clearly not in order. See 38 C.F.R. § §3.303, 3.307, 3.309. The remaining question on appeal is whether the Veteran's current bilateral patella femoral syndrome is related to his in-service shrapnel injury to the left knee. As discussed, the record lacks any medical evidence that links the Veteran's current right knee and left knee disorders to his military service. Indeed, the September 2011 VA examiner provided medical opinions that heavily weigh against the Veteran's claims that his currently diagnosed knee disorders are related to service. The VA examiner opined that it was less likely than not that the Veteran's current bilateral patella femoral syndrome in his knees are caused by or related to his period of service, to include his reported inservice injury. Instead, the VA examiner found that the clinical and x-ray evidence did not support the Veteran's assertion that his current left knee disorder was related to his in-service shrapnel injury and his right knee was not secondary to his left knee disorder. In this regard, the VA examiner noted that x-ray evidence revealed minimal symmetrical findings in both knees which was more consistent with age-related degenerative joint disease and did not reflect findings consistent with a left knee injury that lead to the aggravation of a right knee disorder. There is no medical opinion to the contrary of record. The Veteran's assertions and statements are the only evidence relating his bilateral knee and left shoulder disorders to his period of service. The Board has considered these statements. Lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Here, the Veteran is not competent to render a diagnosis or to opine as to the etiology of his bilateral patella femoral syndrome. The Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence regarding matters that go beyond lay observation, such as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (under certain circumstances, lay person is competent to identify a simple medical condition). While the Veteran is not competent to provide a medical opinion indicating that his current problems are related to service, the Veteran is competent to report his experience and symptoms since service. The Board also acknowledges the competence of the Veteran's statements that he has had left knee symptoms involving his knees since his period of service and he overcompensated by using his right knee which lead to the development of problems in that knee. These are competent recitations of facts as he recalls them, they are not competent medical opinions linking the current underlying left knee pathology to in-service shrapnel injury or his right knee problems as secondary to the left knee disorder. While his statements are of some probative value, the Board ultimately places far more probative weight on the conclusions of the competent health care specialist as to the etiology of his underlying knee disorders. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current left knee and right knee disorder had their onset in service or are otherwise related to his period of service. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. ORDER Entitlement to service connection for a residual scar on the left knee is granted. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. REMAND Unfortunately, the Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim for increased rating for bilateral sensorineural hearing loss. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A remand is needed in order to provide the Veteran with a new VA audiology examination to evaluate the severity of his hearing loss disability. The Veteran underwent a VA audiology examination in January 2007 in conjunction with his original claim for service connection. He submitted the findings from a private audiology evaluation dated in June 2008. While the 2008 private report suggests an increase in the Veteran's hearing loss, the June 2008 private audiogram results were provided in graph form and there is no indication that the speech recognition testing used the Maryland CNC test as required for VA adjudication purposes. See 38 C.F.R. § 4.85(c) (2012). During the May 2011 Travel Board hearing, he testified that his hearing loss had worsened, and pursuant to the Board's August 2011 remand directives, he underwent his second VA audiology examination in September 2011. That 2011 VA examination report contains audiometric results, but the VA examiner found that both the Veteran's speech discrimination scores right pure tone threshold results were invalid because they were unreliable and were not appropriate for VA adjudication purposes. The VA examiner noted that the Veteran complained of significant tinnitus in his right ear at the time of the examination. There is no indication that the VA examination report that the Veteran did not attempt to fully cooperate during the testing. Given that over six years have passed since the most recent valid VA compensation examination, the private audio graph that indicates a worsening in the Veteran's hearing acuity, and there is no indication that valid results could not be obtained from the Veteran, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability of his hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the level of disability of his hearing loss. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. Puretone audiometry and Maryland CNC controlled speech discrimination test results must be provided. 38 C.F.R. § 4.85(a) (2012). The examiner must also provide a full description of the functional effects caused by the hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); see also VBA Fast Letter 08-33 (Oct. 10, 2008). Any additional testing deemed necessary to determine whether the Veteran is cooperating fully and providing accurate responses should be undertaken. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. When the development requested has been completed, the case should again be reviewed and readjudicated. If any of the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs